State v. Parker

Citations: 835 P.2d 918; 113 Or. App. 513; 1992 Ore. App. LEXIS 1307Docket: PO46278 CA A64548

Court: Court of Appeals of Oregon; June 24, 1992; Oregon; State Appellate Court

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Defendant James Leland Parker was convicted of DUII and hit and run after a jury trial. On appeal, the court upheld the DUII conviction but reversed the hit and run conviction. Parker raised seven errors, including the trial court's denial of his motion to suppress evidence obtained during a warrantless search of his business partner's premises. The court noted that the trial court made minimal findings of fact, necessitating a presumption in favor of its ultimate conclusion regarding the facts. 

On the night of the incident, a citizen found Parker behind the wheel of a damaged pickup truck that had collided with an unoccupied semitrailer. The citizen observed that Parker appeared drowsy but did not smell of alcohol. After leaving the scene, police initiated a search for Parker, which included unsuccessful tracking by a police dog. Hours later, officers visited Parker’s home and spoke with his family, who indicated that Parker had gone to his business partner's location.

The police, after an exchange with the business partner, Lines, obtained consent to cut a locked gate to enter the premises, despite Lines initially suggesting they seek permission from the building's owners. Upon entering, officers detected alcohol on Parker, who subsequently admitted to drinking and driving. He recorded a .07 BAC on an Intoxilyzer over five hours post-accident. Parker contended that the state did not demonstrate that Lines' consent for the search was voluntary, warranting suppression of the evidence. The case references established precedents regarding the necessity of clear and convincing evidence for voluntary consent.

The standard for proving the voluntariness of consent to a search requires a "preponderance of the evidence," as established by ORS 133.693(4) and clarified in case law, including State v. Stevens. This standard applies equally to third-party consent, as indicated in City of Portland v. Paulson. The trial court's determination that Lines' consent was voluntary is under scrutiny. The defendant claims that a coercive environment, characterized by the presence of armed police officers at night and a police dog, pressured Lines into consenting. Lines' agreement to allow police to cut a padlock was allegedly influenced by the police's assertion that they would proceed regardless of consent, and he consented to a building entry to avoid the risk of a dog attack.

While coercion can exist in police encounters, it is not necessarily unconstitutional. Lines was not under arrest or investigation, and his admissions to police were deemed voluntary. The trial court likely did not credit Lines' claim about the police's comments regarding the padlock, as factfinders can assess the credibility of evidence. The presence of the police dog was ruled insufficient to invalidate Lines' consent. Consequently, the trial court's conclusion that Lines’ consent was voluntary stands.

The defendant also challenges the court's refusal to grant a continuance related to expert testimony about acetone's effect on his Intoxilyzer results. He argued that the state’s late notification of its intent to call an expert—a year after the case was filed and shortly before trial—prevented him from securing his own expert in time. Although the court allowed a defense expert to testify by phone, the defendant contended this was prejudicial due to the prosecution’s discovery violation, which is required to be disclosed promptly under ORS 135.815(1) and ORS 135.845(1). The prosecution did not justify the delay, which was noted as unusual for such cases, leaving the defendant unaware of the need for an opposing expert until the late notification.

Defendant's ability to present expert testimony was challenged due to the prosecution's discovery violation. He claims to have experienced actual prejudice by being compelled to use a different expert who testified by telephone, which he argues violates ORS statutes on testimony. However, since he did not formally object to the telephonic testimony, any potential error was waived. The court found no abuse of discretion in allowing the testimony under these circumstances. Additionally, defendant sought to exclude the state's expert testimony related to alcohol dissipation based on non-disclosed notes, claiming these were scientific test results. The court ruled that since the notes were not referenced in testimony or offered as evidence, they were not subject to disclosure under ORS 135.815, thus no violation occurred. 

Defendant also contended that his motion for a mistrial should have been granted after an officer suggested defendant's son was untruthful during the investigation. The trial court instructed the jury to disregard the officer's statement and denied the mistrial. Defendant argued the corrective instruction was insufficient, but since the son was not a trial witness, the precedent limiting opinion testimony about a witness's credibility did not apply. The trial court's actions were deemed appropriate, and no reversible error was found.

The officer's testimony regarding the son's initial dishonesty was deemed irrelevant since the son later admitted to taking the defendant to his business. The court ruled this testimony inadmissible, correctly sustaining the defendant's objection and issuing a curative instruction to mitigate potential prejudice. The trial court's decision to deny the defendant's mistrial motion was within its discretion. The defendant contested the court's granting of the state's late motion to consolidate DUII and hit-and-run charges on the trial day, arguing that this warranted the reversal of one conviction. While the state acknowledged the consolidation was untimely under State v. Shields, it argued that the defendant failed to demonstrate prejudice from the consolidation. The ruling in Shields does not necessitate a showing of prejudice beyond the timeliness of the motion. The defendant did not specify which charge was improperly tried, but records indicated the DUII charge as the primary offense, with sentencing details suggesting the court intended for the DUII sentence to cover the hit-and-run conviction as well. The appellate court determined that the trial court erred in allowing the untimely consolidation, resulting in the reversal of the hit-and-run conviction and remanding it for a new trial, while affirming the DUII conviction. Further notes clarify the burden of proof regarding warrantless searches, the implications of consent to search, and rules concerning the disclosure of witnesses in trials.

Mai and Burdge address the exclusion of a party's witness as a sanction for discovery violations. In this case, the defendant claims prejudice due to the exclusion of his chosen witness resulting from the opposing party's discovery violation. The key authority referenced is State v. Girard, which determined that the prosecution was prejudiced by a defendant's failure to disclose a witness, as it hindered the prosecution's ability to secure an expert witness. However, it is emphasized that the defendant was not prejudiced by the prosecution’s discovery violation since his witness was not excluded; instead, he successfully obtained an expert witness who testified by telephone at his suggestion. 

ORS 45.010 outlines the three methods for taking testimony: affidavit, deposition, and oral examination, with ORS 45.040 specifying that oral examination occurs in the presence of a jury or tribunal. Additionally, ORS 135.815 mandates that the district attorney disclose certain materials to the defendant, which includes expert reports and statements meant to be introduced as evidence at trial.